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Delapara v. Colvin

United States District Court, E.D. Virginia, Richmond Division

August 19, 2016

ANISSA DELAPARA, o/b/o V. D.J., pro se Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Anissa Delapara, Plaintiff, Pro Se.

          Social Security Administration, Defendant, represented by Elizabeth Catherine Wu, U.S. Attorney Office.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK, Magistrate Judge.

         On July 9, 2013, Plaintiff Anissa Delapara ("Plaintiff"), proceeding pro se, filed an application for supplemental security income ("SSI") on behalf of a minor child claimant under the Social Security Act ("Act"). The Commissioner denied Plaintiffs claims both initially and on reconsideration. On February 11, 2015, an administrative Jaw judge ("ALJ") held a hearing, and, on June 18, 2015, the ALJ issued a decision denying Plaintiff's claims. On November 24, 2015, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision the final decision of the Commissioner.

         On February 8, 2016, Plaintiff appealed the Commissioner's decision to this Court pursuant to 42 U.S.C. § 405(g). This matter comes before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) on Defendant's Motion to Dismiss (ECF No. 13). Defendant moves to dismiss Plaintiffs claim on the basis that Plaintiffs appeal was untimely filed. Having reviewed the parties' submissions, the Court is now prepared to issue a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Court recommends that Defendant's Motion to Dismiss (ECF No. 13) be GRANTED and that Plaintiff's Complaint (ECF No. 3) be DISMISSED with prejudice.

         I. PROCEDURAL HISTORY

         On July 9, 2013, Plaintiff protectively filed for SSI on behalf of a minor child claimant. (Def.'s Mem. in Supp. of Mot. to Dismiss ("Def.'s Mem.") (ECF No. 13), Deel. of Roxie Rasey Nicoll ("Nicoll Deel.") (ECF No. 13-1), Attachment I to Nicoll Deel. C'ALJ's Decision") (ECF No. 13-2) at 1.)[1] On June 25, 2013, the Agency denied Plaintiff's claims. (ALJ's Decision at 1.) On January 21, 2015, the Agency denied Plaintiff's claims on reconsideration. (ALJ's Decision at 1.) On February 11, 2015, the ALJ held a hearing during which Plaintiff and a vocational expert testified. (ALJ's Decision at 1.) On June 18, 2015, the ALJ issued a decision denying Plaintiff's application for SSL (ALJ's Decision at 16.)

         On November 24, 2015, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (Attachment 4 to Nicoll Deel. ("Appeals Council Notice") at 1.) The Appeals Council noted that if Plaintiff disagreed with its decision, Plaintiff could file a civil action in the United States District Court for review. (Appeals Council Notice at 2.) After detailing how Plaintiff may file a civil action, the Appeals Council explained that Plaintiff had sixty days to file that civil action. (Appeals Council Notice at 2-3.) The Appeals Council further explained that such time frame would commence upon Plaintiff receiving the Appeals Council Notice and the Appeals Council would assume that Plaintiff received the Notice within five days of the date of the Notice, unless Plaintiff could demonstrate otherwise. (Appeals Council Notice at 3.) Should Plaintiff not have been able to file her civil action within sixty days, she could have requested an extension in writing from the Appeals Council. (Appeals Council Notice at 3.) Plaintiff filed no request for an extension. On February 5, 2016, Plaintiff commenced her action in this Court by filing her Motion for Leave to Proceed in forma pauperis (ECF No. 1).

         II. ANALYSIS

         Defendant argues that this Court should dismiss Plaintiff's Complaint, because Plaintiff filed this action more than sixty days after receipt of the Appeals Council Notice. (Def.'s Mem. at 4-5.) Further, Defendant contends that Plaintiff did not demonstrate good cause to extend the sixty-day period by equitable tolling of the prescribed time line. (Def.'s Mem. at 5-6.) Plaintiff responds with the following reasons for missing the filing deadline: (1) the Social Security Administration ("SSA") mismanaged her personnel files; (2) the SSA never adequately explained her rights in the Appeals Council Notice; (3) bad weather prevented her from gathering necessary documents; and (4) she did not have legal counsel. (Resp. to Dismissal (Pl.'s Resp.) (ECF No. 74) at 1-2.) Finding that Plaintiff did not timely file this action without good cause, the Court recommends dismissal of Plaintiffs Complaint with prejudice.

         A. Plaintiff did not timely file this action within the required sixty-day period.

         Congress has prescribed the procedure for judicial review in this Court of a denial of benefits under the Act:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.

42 U.S.C. § 405(g); see also 20 C.F.R. § 422.210(c) (noting that civil action must be commenced within sixty days).[2] Thus, a plaintiff has a sixty-day time period after the final decision of the Commissioner or "such further time as the Commissioner... may allow" to file her action with this Court. This sixty-day time period, promulgated by Congress, "constitutes a ...


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